California OAH special education order · December 12, 2018

Order to Show Cause Why Paramount Unified School District Should Not Be Ordered to Pay Expenses

OAH Case No. 2018100224 · ALJ Peter Paul Castillo

OAH ordered Paramount to show cause why it should not pay OAH's mediator travel and interpreter costs after its attorney skipped a mediation the parties had jointly requested.

Order to show cause issued Sanctions and cost-shifting

Summary

The parties jointly asked OAH to continue the case and set a mediation for December 5, 2018. On that date, the mediator, Student's family, Student's attorney, an OAH interpreter, and a Paramount representative all appeared, but Paramount's attorney, Angela Gordon, did not, saying she believed the mediation was being continued. OAH canceled the mediation and, on its own motion, ordered Paramount to explain in writing by December 19, 2018 why it or its attorney should not pay OAH's travel and interpreter expenses and the costs of the order to show cause. A telephonic hearing on the order to show cause was set for December 28, 2018.

Why it matters

Missing a mediation the party itself asked for can expose a district or its attorney to paying OAH's costs under Section 3088 and the Government Code. Parents who show up prepared, with interpreters and counsel, have a remedy when the other side wastes the session.

Key authority cited

  • Cal. Code Regs., tit. 5, § 3088
  • Gov. Code, § 11405.80
  • Gov. Code, § 11455.30
  • Gov. Code, § 11455.10
  • Wyner ex rel. Wyner v. Manhattan Beach Unified School Dist. (9th Cir. 2000) 223 F.3d 1026

People named in the order

  • Angela Gordon, Attorney for Paramount Unified School District

Topics

sanctions order to show cause mediation failure to appear expense shifting interpreter costs

Full text of the order

Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENT ON BEHALF OF STUDENT, OAH Case No. 2018100224 v. ORDER TO SHOW CAUSE WHY

PARAMOUNT UNIFIED SCHOOL

PARAMOUNT UNIFIED SCHOOL DISTRICT SHOULD NOT BE

DISTRICT. ORDERED TO PAY EXPENSES

On September 28, 2018, Student filed with the Office of Administrative Hearings a request for a due process hearing naming Paramount Unified School District. On October 28, 2018, OAH granted the parties’ joint request for continuance, setting a mediation for 9:30 a.m., on December 5, 2018.

On December 5, 2018, the assigned mediator traveled to the Paramount’s office.

Student’s family, Student’s attorney and OAH provided interpreter were present for the mediation. Paramount’s representative was present. However, Paramount’s attorney, Angela Gordon, did not appear for the mediation. When contacted as to her absence, Ms. Gordon replied that she did not appear as she believed that the mediation was to be continued. OAH subsequently canceled the mediation.

APPLICABLE LAW

Under certain circumstances, an administrative law judge presiding over a special education proceeding is authorized to shift expenses from one party to another, or to OAH.

(Gov. Code, §§ 11405.80, 11455.30; Cal. Code. Regs., tit. 5, § 3088; see Wyner ex rel. Wyner v.

Manhattan Beach Unified School Dist. (9th Cir. 2000) 223 F.3d 1026, 1029 [“Clearly, [California Code of Regulations] § 3088 allows a hearing officer to control the proceedings, similar to a trial judge.”].) A party may be order to pay expenses of a party, or OAH as a result of “bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. . .

. ” (Cal. Code Regs. tit. 5, § 3088, subd. (a).) A party may also be ordered to pay costs for failure or refusal, without substantial justification, to comply with an order of the presiding officer. (Govt. Code § 11455.10.) Only the ALJ presiding at the hearing may place expenses at issue. (Cal. Code. Regs., tit. 5, § 3088, subd. (b).)

ORDER TO SHOW CAUSE

Paramount is ordered to show cause why Paramount’s attorney, Angela Gordon, should not be required to pay OAH’s costs as to the December 5, 2018 mediation, which includes OAH travel and interpreter expenses related to the mediation. Paramount is ordered to file a written response with OAH by no later than 5:00 p.m. on December 19, 2018. A copy of the response shall be served upon Student. Student is not expected to file a written response.

Paramount’s response shall address why Paramount’s attorney did not appear at the mediation despite asking for and agreeing to the mediation date in the continuance request.

Paramount’s written response shall address why OAH should not order Paramount to pay OAH’s expenses for sending a mediator to the scheduled December 5, 2018 mediation and OAH travel and interpreter expenses related to this mediation, and for this order to show cause.

The order to show cause hearing shall take place telephonically on December 28, 2018, at 11:00 a.m. Failure of Paramount’s representative to appear telephonically at the order to show cause hearing on December 28, 2018, may result in additional sanctions.

ORDER

1. An Order to Show Cause as to Why Paramount Should Not be Ordered to Pay

Expenses is hereby issued. Paramount must file a response no later than 5:00 p.m. on Wednesday, December 19, 2018.

2. A telephonic order to show cause hearing shall be convened at 11:00 a.m. on

Friday, December 28, 2018.

IT IS SO ORDERED.

DATE: December 12, 2018

PETER PAUL CASTILLO

Presiding Administrative Law Judge Office of Administrative Hearings